Shumway v. Shumway

• Citation: 679 P.2d 1133,106 Idaho 415
• Decision Date: 29 March 1984
• Docket Number: No. 14600,14600
• Parties: Linda SHUMWAY, Plaintiff-Appellant, Cross-Respondent, v. Brad SHUMWAY, Defendant-Respondent, Cross-Appellant.
• Court: United States State Supreme Court of Idaho

Page 1133

679 P.2d 1133

106 Idaho 415

Linda SHUMWAY, Plaintiff-Appellant, Cross-Respondent, v. Brad SHUMWAY, Defendant-Respondent, Cross-Appellant.

No. 14600.

Supreme Court of Idaho.

March 29, 1984.

R.M. Whittier, and John Souza, of Whittier & Souza, P.A., Pocatello, for plaintiff-appellant, cross-respondent.

Wm. Breck Seiniger, Jr., Boise, for defendant-respondent, cross-appellant.

DONALDSON, Chief Justice.

Brad and Linda Shumway were married on September 6, 1969. In April, 1972, the Shumway family moved to Treasureton, Idaho, to help Brad's father operate his farming business. The Shumway family has continued to live on the farm in Treasureton since that time.

On November 16, 1979, Linda Shumway filed an action for divorce against Brad Shumway alleging extreme cruelty. In addition, Mrs. Shumway sought custody of the Shumway's two sons who were five and eight years of age, and an equal division of the community property.

After a contested trial in the magistrate court, the magistrate concluded that neither spouse had engaged in conduct amounting to extreme cruelty. However, the court granted the divorce upon the grounds of irreconcilable differences. The magistrate determined that it was in the best interests of the children to grant custody of the two sons to the father, Brad Shumway. The court further ordered Linda Shumway to pay $50.00 per month per child for child support to begin thirty days after she obtained employment.

In dividing the marital property, the court found that Brad Shumway owned an undivided one-half interest in the farm property which he received as a gift from his parents. As such, this was his separate property and not subject to division.

The magistrate found that an oral partnership agreement pertaining to the operation of the farm had been entered into between Brad Shumway and Brad's father on January 1, 1972. Subsequently, the partnership made improvements to the farm property. The court held that the increase in the value of the real property constituted partnership property. Furthermore, the court found that Brad owned a one-half interest in the farm partnership, and that the interest was community property. The court determined the net worth of the partnership to be $253,396.00. The court then found that Linda Shumway was, therefore, entitled to receive $63,349.00 in cash for her "interest in the partnership." The court went on to divide the other community assets owned by the parties and arrived at a total balance due to Linda Shumway of $65,482.26. Of this amount $20,000.00 has been paid, and execution on the balance was stayed by order of the court.

Linda Shumway appealed the magistrate's decision to the district court and in addition requested a trial de novo. Brad Shumway cross-appealed. The district court denied Linda Shumway's request for a trial de novo. In its decision on the appeal, the district court affirmed the magistrate's decision in all matters except as to the crops growing at the time of the divorce and the income earned during the year of the divorce. As to those matters the district court remanded to the magistrate to make findings thereon, requiring the magistrate to seek an accounting from Brad Shumway. This appeal followed.

Linda Shumway contends that the court erred by: (1) refusing to grant her the divorce on the ground of extreme cruelty; (2) awarding custody of the parties' two sons to Brad Shumway; and, (3) ordering her to pay $100 per month as child support. In addition, Linda Shumway contends, as does Brad Shumway on cross-appeal, that the court made various errors in its division of the community property. Finally, both parties claim that they are entitled to attorney fees on appeal.

We begin our analysis with a review of the magistrate court's record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact. Secondly, we will determine whether the magistrate's conclusions of law follow from his findings. If the findings are so supported and the conclusions follow therefrom, we will affirm the district court's decision since the district court affirmed the magistrate's decision. Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139 (1981); Griffin v. Griffin, 102 Idaho 858, 642 P.2d 949 (Ct.App.1982).

I.

A. Ground for Divorce:

I.C. § 32-605 defines extreme cruelty as "the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage." Whether a spouse's conduct constitutes extreme cruelty is primarily a question of fact to be decided by the magistrate, and the magistrate's findings will be upheld if they are supported by substantial evidence. Parks v. Parks, 91 Idaho 420, 422 P.2d 618 (1967); Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962). We have reviewed the record and transcript, and we hold that there is substantial evidence to support the magistrate's finding that neither of the parties had engaged in conduct amounting to extreme cruelty.

B. Child Custody:

"Questions of child custody are within the discretion of the trial court, and it has been repeatedly held that this Court will not attempt to substitute its judgment and discretion for that of the trial court except in cases where the record reflects a clear abuse of discretion." Strain v. Strain, 95 Idaho 904, 905, 523 P.2d 36, 37 (1974); quoted in Moye v. Moye, 102 Idaho 170, 171, 627 P.2d 799, 800 (1981), and Poesy v. Bunney, 98 Idaho 258, 261, 561 P.2d 400, 403 (1977). Linda Shumway contends that the magistrate abused his discretion in awarding custody of the parties' two boys to Brad Shumway. She argues that the magistrate never made findings as to her fitness to care for the children, that the boys in fact did not have a close relationship with their father, that the magistrate erroneously considered the wishes of the boys, and that the magistrate was primarily concerned with the relationship between the children and their grandparents.

Of paramount importance in determining custody is the children's welfare and best interests. Moye v. Moye, supra; Blakely v. Blakely, 100 Idaho 107, 594 P.2d 145 (1979); I.C. § 32-717. ¹ We disagree with the appellant's contention that the magistrate abused his discretion. The magistrate made extensive findings on the issue of custody and those findings are supported by substantial, although conflicting, evidence. Appellant's argument that the magistrate failed to make specific findings as to her fitness is incorrect because Finding of Fact 13 states that both of the parties are "loving parents and are fit to have custody." Furthermore, the magistrate found that Brad Shumway did in fact have a close and meaningful relationship with his sons, and that he spent a great deal of time with them.

We have previously stated that the wishes of young children should not constitute the determining factor in a decision as to custody. Tomlinson v. Tomlinson, 93 Idaho 42, 46, 454 P.2d 756, 760 (1969); Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963). In the instant case, the magistrate did not violate this rule of law. The magistrate stated that due to the ages of the children, their wishes, while persuasive, were "not considered as the dominant reason" for the custody determination and were "not dispositive of the issue."

While the magistrate did consider the relationship between the boys and their grandparents (Brad's parents), we do not find that to constitute error. Rather, consideration of that relationship is valid in this case since it reflects on the children's adjustment to their home and community--factors which I.C. § 32-717 lists as factors which may be considered. See also Neis v. Neis, 3 Kan.App.2d 589, 599 P.2d 305, 309 (1979) ("This Court has never held that a divorced father, who is otherwise entitled to custody of his child, should be deprived thereof simply because the necessities of making a living compel him to temporarily entrust care of the child to grandparents.") quoting Schreiner v. Schreiner, 217 Kan. 337, 537 P.2d 165, 169 (1975).

Finally, appellant argues that since the children were of "tender years" she should have received custody. "To the extent previous case law exists which suggests a preference for the mother as custodian of a child of tender years, the preference exists only when all other considerations are equal." Moye v. Moye, 102 Idaho 170, 172, 627 P.2d 799, 801 (1981) (emphasis added). Since it is apparent that the magistrate did not determine that all other considerations were equal, there was no need to apply the "Tender Years Doctrine." Finding no abuse of discretion, we affirm the magistrate's award of custody of the children to Brad Shumway.

C. Child Support:

"Child support awards rest in the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion." Ross v. Ross, 103 Idaho 406, 409, 648 P.2d 1119, 1122 (1982). Appellant Linda Shumway argues that the magistrate erred in awarding child support payments to Brad Shumway because he did not request child support in his pleadings and did not show that child support was necessary. Furthermore, appellant alleges that she has no proven earning capacity and, therefore, the award was improper.

One of the considerations in setting amounts for child support is the financial ability of the payor to make the payments. Cope v. Cope, 98 Idaho 920, 576 P.2d 201 (1978); Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964). The magistrate stated: "As soon as the [appellant] becomes employed she shall pay the sum of $50.00 per month per child for child support." It is unclear from the magistrate's statement whether or not he meant to imply that appellant is not financially able to make the payments until she obtains employment. While that does seem to be the implication, we note that appellant received a sizable award as a result of the division of property from which it would appear the child support...